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Sunday, August 17, 2014

More Questions about Terms and Conditions

I got a couple of readers who called my attention to a post by The Ancestry Insider entitled, "Ancestry.com New Terms and Conditions." Like the Ancestry Insider notes, I am not an attorney, but on the other hand, I was one for almost 40 years. My opinions about the subject of terms and conditions in general have been expressed in a number of posts in the past. But it has been a long time since I got into the subject of the terms and conditions of the online genealogy database programs.

If you have little or no background in law, the terms and conditions attached to websites probably are a bunch of mumbo jumbo and you probably ignore them completely. If you use the online program, you have no choice but to agree to the terms of use. The only other option is to decline to use the program. Terms and conditions of use are not unique to Ancestry.com, in fact, they are generally used by all of the larger online programs and almost universally used by software companies in general. If you are disturbed by terms and conditions, you might as well get over it because they are everywhere.

Now, the real question is this, what do terms and conditions mean and should you be worried about them? First it is important to note that these types of licenses and agreements are possibly contracts of adhesion. A adhesion contract is defined as a standard form contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position. See Wikipedia: Standard form contract. The enforcement of such contracts has been the subject of a huge number of legal cases and the decisions of the courts around the United States vary from state to state.It is not the idea of a "standard form contract" that is the problem, courts in the United States have found those to be enforceable. The problem is when surprising or unexpected terms are inserted and then enforced.

Should you be worried? General awareness of the legal background of using computer software, either online or desktop is probably a good idea. In my personal opinion, if any software company, including the online genealogy companies, began strictly enforcing their terms and conditions against all users, they would be out of business within a short period of time. Why would these companies publish terms and conditions that are either difficult or impossible to enforce and which are possibly highly detrimental to their business interests? I can answer the question in one word: attorneys. The corporate attorneys think this stuff up to "protect their clients' interests" without a thought about the impact the provisions might have on that same business. If they were in a real negotiation with an opposing party represented by an attorney, these agreements would be far less restrictive and more pertinent to the real legal issues involved. But since there is in reality, no one on the other side of the terms and conditions issues, the attorneys are given free rein to say whatever comes to mind.

The serious problem with these terms and conditions is that if you violate the terms and conditions of use of your software you could be subject to a legal action and could not only lose the ability to use the software but could also be subject to a claim for damages. The possibility of this happening is completely determined by the individual circumstances of each case. There is no way, if I were an attorney, that I could tell you to completely ignore these terms and conditions. On the other hand, the practical reality is that the possibility of there being an actual legal case is very, very low for any one user.

Without doing a huge amount of legal research, I could not personally say whether the provisions outlined by the Ancestry Insider were or were not enforceable and I am not going to take the time to do such research because I am retired from practicing law and do not intend to spend my time looking stuff up for free. If there is an attorney out there who is still practicing who would like to take on Ancestry.com and the rest of the large companies, be my guest.